In blow to state’s Republicans, Supreme Court strikes down voter registration law

In a 4-0 ruling, with Chief Justice Gordon MacDonald recusing himself, Senate Bill 3 is ruled unconstitutional

By: - July 2, 2021 12:07 pm
Exterior of the NH Supreme Court

Gov. Chris Sununu called the court’s ruling on Senate Bill 3 “disappointing.” (Dave Cummings | New Hampshire Bulletin)

The New Hampshire Supreme Court struck down a 2017 voter registration law in its entirety Friday, holding that it burdened the constitutional right to vote.

Voting 4-0, the court overturned Senate Bill 3, a Republican-backed law that would have required voters to prove their place of domicile by producing a series of documents to election officials – or face steep fines and misdemeanor charges for noncompliance.

“We conclude that SB 3 imposes unreasonable burdens on the right to vote,” the court wrote. 

The law was touted by Gov. Chris Sununu as an election security measure that would ensure towns would know whether voters were voting in the correct town – and reduce the potential for voter fraud.

Before SB 3, New Hampshire voters did not need to prove their domicile in order to register to vote but could instead fill out an affidavit confirming that they lived where they said they did. 

SB 3 required voters to bring in documents that showed they were a student, a tenant, a homeowner, or had a driver’s license with an accurate address in order to register up to 30 days before the election. Those voters registering within 30 days – or registering on the same day as voting – would have to sign a new form promising to send the documents by mail or bring them within a month after the election was held.

Under the law, a voter who failed to send in those documents within 10 to 30 days of the election could face a fine of up to $5,000 and a misdemeanor charge.

Democrats blasted the law as confusing and burdensome, and the New Hampshire Democratic Party teamed up with the League of Women Voters of New Hampshire and six plaintiffs, who said the new documentation requirements could disrupt their ability to vote in the state. 

At issue in the case was how much of a barrier the new law would present to voters – and whether those hurdles made it unconstitutional.

Those suing the state brought forward experts suggesting that the affidavit requirements were written in a legalese that would confuse voters and turn them away; one linguistics expert, Dr. Deborah Bosley, said that it was written “at a readability level equivalent to the Harvard Law Review,” the court noted.

And the plaintiffs provided evidence that SB 3’s requirement that certain voters mail in evidence of their domicile was also not effective. After a trial court partially froze the law ahead of the 2018 election – keeping the law’s mandates but removing the fines and penalties – only 289 of 1,104 voters who were supposed to return documents did so. 

Had the law’s requirements been in effect, 815 voters in 2018 would have had to pay up to $5,000 in fines, the trial court found. 

The state rejected the notion that SB 3 had caused confusion during the 2018 elections, saying the claim came from “anecdotes and nonspecific hearsay arguments.”

But the Supreme Court sided with the lower court on Friday, finding that the evidence of longer lines and the failure to return forms in time in 2018 provided “sufficient evidentiary support” for the claim that the law had burdened the right to vote. 

Then, the state took the argument further. Even if there was a burden on voting, the New Hampshire Attorney General’s Office argued the law could be struck down only if the harm was near universal. Even if the new law “imposes an unjustified burden on some,” the state wrote in its appeal, it should be struck down only if the burden appears “in all or virtually all of its applications.”

“A purported burden on some voters is insufficient to invalidate a law of general applicability,” the state wrote. 

The Supreme Court rejected that argument as well. 

Much of the disagreement over SB 3 has focused on whether it was justified to prevent voter fraud. The trial court had found that it wasn’t. To start, the court noted, the new documentation requirements would not stop someone interested in fraudulently voting from doing so. Secondly, the court continued, the amount of voter fraud recorded in the state is “illusory.”

The Supreme Court upheld that interpretation Friday. 

“We are persuaded by the trial court’s analysis and determine that its findings are supported by the record before us,” the Supreme Court wrote. “Accordingly, we conclude that SB 3 is unconstitutional, as the State has failed to demonstrate that SB 3 is substantially related to the precise governmental interests it set forth as justifications necessitating the burdens the law imposes on the right to vote.”

The court also found that the Secretary of State’s Office could not amend the language in the affidavit in an attempt to make it more clear. 

Notably absent from the 4-0 decision was Chief Justice Gordon MacDonald, who recused himself because he had defended SB 3 in court while serving as New Hampshire’s attorney general. He was appointed to the court by Sununu earlier this year. 

The opinion set off fierce reactions from New Hampshire political leaders Friday morning.

Sununu lamented the decision in a statement.

“It’s disappointing that these common-sense reforms were not supported by our Supreme Court, but we have to respect their decision, and I encourage the Legislature to take the court’s opinion into account and continue working to make common-sense reforms to ensure the integrity of New Hampshire’s elections,” Sununu said.

House Speaker Sherman Packard, a Londonderry Republican, also expressed disappointment. But he said that the House would continue legislation to regulate voting in the state.

“While this outcome is not ideal, it does give the Legislature a renewed sense of purpose as we work together to ensure New Hampshire’s elections remain fair with open transparency,” Packard said.

Democrats, meanwhile, said the ruling confirmed their criticism of the bill.

“SB 3 added no security to our elections and unconstitutionally created a separate class of voters with different qualifications,” said Rep. David Cote, the deputy House Democratic leader and the former chairman of the House Election Law Committee. “The Supreme Court’s strong, unanimous ruling today, which concluded the state failed to ‘demonstrate that SB 3 is substantially related to an important governmental objective,’ confirms what Democrats said all along – there is no reasonable justification for enacting these unnecessary, confusing obstacles to the voter registration process.”

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Ethan DeWitt
Ethan DeWitt

Ethan DeWitt is the New Hampshire Bulletin’s education reporter. Previously, he worked as the New Hampshire State House reporter for the Concord Monitor, covering the state, the Legislature, and the New Hampshire presidential primary. A Westmoreland native, Ethan started his career as the politics and health care reporter at the Keene Sentinel. Email: [email protected]